LECTURE NOTES – LAW 203: LAW OF TORTS I

The word tort is derived from the Latin word tortus meaning broken or twisted. Hence tort is
concerned with twisted or wrongful behavior. Tort is a civil wrong which arises from three ways:

1. Intentional wrongful act which harms the body or property: assault, battery and trespass
to land;
2. Negligence which unintentionally causes physical property, property or economic injury
to a person to whom another person owes a duty of care; and
3. Defamation which is false and legally inexcusable aspersions on aspersion’s reputation.

In general therefore, tort deals with human behavior which is categorized as wrongful by the law
and such behavior interferes with an interest of another protected by the law. The victim is
allowed to seek redress in an act which may give rise for an action in torts and some other
branches of law for instance, contract. The relationship between the tortfeasor (the person who
committed the tort) and the victim are relevant when considering compensation for victims of
wrongdoings through tort law. In Rylands v Fletchure, for example, it was said that one who
allows a dangerous thing to escape from land he does not occupy does not commit this tort. Tort
is thus concerned with providing remedy to people harmed by others. It is concerned with the
protection of certain interests against certain types of wrongful behavior.

Distinction between Tort and Contract

Formal

CONTRACT TORT
Obligations are created by law independent of
Obligation is based on agreement between the the parties.
parties

Substantive:

CONTRACT TORT
Aims to protect the interest in the Aims at maintaining the status quo (the
performance of promises but tort aims at existing current situation);

Gives damages for disappointment Gives damages for deteriorating of the

plaintiff’s position; for many torts there will
be no damages if the plaintiff’s person or
property is not harmed;
Rights are in personam (against a particular Rights are available against all persons, ie in
person) rem

Liability is for nonfeasance (failing to Liability is concerned with misfeasance

perform a particular act) (positive actions causing damage)

1|Page
DISTINCTION BETWEEN TORT AND CRIME

An act may be both a tort and a crime. The aim of criminal law is to protect the interest of the
public by suppressing of certain behaviour through the infliction of punishment whilst the aim of
tort is to give private redress to wrongs suffered by individuals through monetary compensation.

INTRODUCTIONTO THE LAW OF TORTS

The word tort comes from the Latin word tortus, which means crooked. Tort is thus concerned
with crooked/wrong behaviour. It is a breach of a legal duty or infringement of a legal right
arising independently of contract which gives rise to a claim for unspecified damages.

Elements of the definition

1. Breach of a legal duty or infringement of a legal right – there is no liability in tort unless
the law recognizes that a legal duty or right exists which has been breached.
2. Arising independently of contract – no contractual relationship need exist for a claim to
be made [but the existence of a contractual does not preclude liability in tort
3. Claim for unspecified damages – the compensation for the loss is determined by the
courts.

There have been several attempts to define a tort; however, none seems entirely satisfactory.
Perhaps the most acceptable definition of tort was the one given by Sir Percy Winfield who
defined tort as follows:

Tortuous liability arises from the breach of a duty primarily fixed by law; such duty is towards
persons generally and its breach is redressable by an action for unliquidated damages. 1

Unliquidated damages are damages determined by the court, and not previously agreed by the
parties.

In order to understand the definition by Prof. Winfield, it is necessary to distinguish tort from
other branches of the law, and thus to discern how the aim of tort differs from the aims of other
areas of law such as contract law.

It is obvious that in any society of people living together, numerous conflicts of interest will arise
and that actions of one man or group of men will from time to time cause or threaten damage to
others. This damage may take many forms such as injury to the person, damage to physical
property, damage to financial interests, injury to reputation and so on; and whenever a man
suffers damage he is inclined to look to the law for redress. Thus when damage is caused to
another person in any of such situations, that person has breached a duty towards the other
person - he has wronged him, he has committed a tort and will be liable to pay some
compensation to him.

In the great majority of tort actions coming before the courts, the plaintiff is seeking monetary
compensation (damages) for the injury he has suffered. In many cases, however, the plaintiff is

1
See Rogers, W.V.H, Winfield and Jolowicz on Tort (13th edn. International Student Editions, Sweet & Maxwell,
London, 1990)
2|Page
seeking an injunction to prevent the occurrence of harm in the future and in this area the
‘preventive’ function of tort predominates.2

The law of torts deals with a wide variety of wrongs - intentional torts, negligence and strict
liability.

i. Intentional torts and unintentional torts

Intentional torts refer to wrongs in law, which a person is held for having acted intentionally or
knew that what he did would harm a person. In intentional torts, the question to ask is whether
the defendant intended or desired to affect the interest of the plaintiff. If his intention was to
affect the interest of the plaintiff or he knew his action was likely to lead to the result, he is
liable. This is because his intention was to invade the plaintiff’s interest.3

ii. Negligence

A negligent act is an act that a reasonable person will conclude would lead to the invasion of the
interest of the plaintiff. Reasonable person is the ordinary layman or the ordinary technical
person as the case may be depending on the matter in issue. Negligence may signify full
advertence (regard) to one’s conduct and the consequences thereof. More usually, it signifies
inadvertence by the defendant, a simple example, being the motorist who falls asleep at the
wheel. In advertent negligence, the tortfeasor has displayed mere negligence. In advertent
negligence, a tortfeasor displays an attitude of mental indifference to obvious risks. An
illustration of full advertence is Vaughan v Menlove,4 where the defendant had been warned that
his haystack was likely to overheat and to take fire, which might spread to the land of his
neighbour. He said he would chance it, and he was held liable for the damage that occurred when
the stack actually took fire.

iii. Strict liability

This finds a person liable in law for an act or omission even if his/her conduct was unintentional.
A classic example of strict liability is the rule in Rylands v Fletcher.5 This rule takes its name
from the case in which it was first formulated. It provides that, if a person brings on his land and
keeps there something likely to do danger if it escapes, he keeps it there at his peril and will be
strictly liable for any damage which follows from an escape, even if there has been no
negligence.

Civil liability is concerned with the relationship of one citizen to another; Criminal liability is
concerned with the relationships of a citizen to society organized as a state. 6

1. Damage and Liability

Damage is loss suffered by one person or harm caused to the person. This damage may be
physical or economic, resulting from a wrongful act or default (i.e. not acting) and generally
leading to the award of a measure of compensation. A person therefore suffers damage because
2
For example in cases of defamation, nuisance, etc the plaintiff may seek an injunctive relief against the defendant.
3
Examples of intentional torts include assault, battery, false imprisonment, trespass to land; etc
4
(1837) 3 Bing N.C. 468
5
(1868) LR 3 HL 330
6
[1973] AC 435, HL
3|Page
he has lost something or has been harmed by another person’s wrongful acts. Liability is the
accountability for some state of affairs to which one’s conduct has contributed, together with an
obligation to repair any injury caused. A person is therefore liable for his wrongful acts and he
has to compensate the other whom he has wronged. It is important to note that, generally, a
person cannot be held liable for the tort of another person.7

2. Forms of Liability

There are different ways in which liability may arise.

1. Liability may be imposed as a legal consequence of a person’s act or his omission if he is

under a legal duty to act. For example, if the Electricity Company of Ghana (ECG) was to
remove a live wire but did not cover same and a man was electrocuted, by stepping on the
wire the Electricity Company of Ghana would be held liable for the injuries caused.

2. Liability may also be imposed upon one person as the legal consequence of the act or
omission of another person with whom he stands in some special relationship such as
master and servant. This is known as vicarious liability. In some cases, liability is based
on fault, sometimes an intention to injure is required but more often negligence is
sufficient. In other cases, which are called cases of strict liability, liability is in varying
degrees independent of fault.8

HISTORY OF LAW OF TORTS IN GHANA

The law of tort in Ghana is part of the received Common law. Before the 19 th Century, the
common layers viewed law not in terms of doctrines but in terms of certain specific writs
available to redress specific wrongs. During the Norman conquest of the 13 th Century, no
plaintiff could bring an action in the King’s court without one of the writs issued from the
Chancery. These writs became limited. A plaintiff had to select that writ which fitted the facts of
his case. If he chose the wrong writ, this was fatal to his action and were framed to govern
certain specific kinds of wrongs. Each writ had its own procedure and substantive law. A
plaintiff had to select that writ which fitted the facts of his case. If he chose the wrong writ, this
was fatal to his action. Modern torts law arose from three of these writs:

i. Trespass viet armis;

ii. Trespass on the case; and
iii. Detinue (which was abolished in 1977)

Three categories of torts was recognized:

i. Trespass to the person – vi et armis

ii. Trespass to goods – de bonis asportatis
iii. Trespass to land – quare clausum freigit

The common feature of all three are trespass must be:

7
The only exception is to be found in cases of vicarious liability where an employer is found liable for the torts
committed by his employees in the course of their employment.
8
For a fuller discussion of vicarious liability, see Chapter 3 above
4|Page
 a. an act done by the defendant, hence an act done by a third party is not trespass;
b. which is direct and forcible, thus merely causing injury or damage was not trespass.
With time the force didn’t come to mean great display of force or violence but unauthorized.

Therefore trespass was established as:

 An act by the defendant,
 which is direct,
 forcible interference with the plaintiff’s right

The insistence of these three criteria meant that several kinds of injuries fell outside the scope of
trespass vi et armis, thus aspersion. If A voluntarily submits himself or property to B’s action,
the writ will not be issued even if B’s action caused harm. If A’s injury was only a direct
consequence of B’s action, this was not trespass. Intentionally putting a log in someone’s way
and causing him to trip over it and fall is not trespass because the injury is consequential and not
direct. The courts have, however, determinate directness as causal occasionally. 9 In the same
way, there is no trespass if the injury to the plaintiff was caused by mere omission.10

TRESPASS ON THE CASE

The writ of trespass on the case was developed to fill in these gaps. The major procedural point
of difference between the two is as follows: In trespass, a trespass, a plaintiff confined himself to
conventional words in the writ and reserved his substantial allegation for declaration whilst in
trespass on the case, the naked facts upon which he relied were lengthily set out in the writ itself.
Trespass on the case is responsible for the greater part of our modern tort law; such as nuisance,
conversion, deceit, defamation, malicious prosecution, various torts protecting economic interest
and negligence. Trespass vi et armis because of its quasi- criminal origins required no proof per
se; hence it is actionable per se and there is no need for proof of damage. For trespass on the
case, it was not actionable per se and to succeed, one had to prove actual damage.

BASIS OF LIABILITY IN MODERN TORT LAW

The law of torts seems to be concerned with two competing interests of the individual:

 the individual’s interest in his security; and

 his freedom of action

Earlier in the common law, since the basic emphasis was on procedure, very little attention was
paid to the mental condition of people committing torts. It was said therefore that liability in
trespass was strict. Strict liability means, liability imposed without inquiring into whether the
injury complained of was attributable to the defendant’s fault.

Strict liability best promotes interest in the individual’s security. As said by Lord Cransworth in
Rylands v Fletcher,11 it is in the interest of the victim that the law should ignore all questions of
relating to the mental state of the defendant at the time of the tort, so that he can claim
compensation, irrespective of culpability or innocence of the tortfeasor.
9
See Scott v Shepard
10

11
(1868) LR 3HL 330
5|Page
For the second competing interest, namely, freedom of action, this is hampered if the individual
acts at his peril, thus if you promote the individual’s interest in his security by imposing strict
liability, you are limiting his freedom of action. Therefore if you want to promote freedom of
action, you have to do away with strict liability.

The foundation for the modern law of torts were developed in the nineteenth century at a time
when the intellectual climate was dominated by notions of free enterprise, open market, etc, this
favoured freedom of action over security. It was argued that imposing liability on entrepreneurs
and other men of action for injuries blamelessly caused would dampen their enthusiasm and
blunt initiative and bold action needed for the growth of the economy. The cardinal principle
therefore was “no liability without fault”

Principally liability of Ghanaian tort law is based on fault: thus whether intentionally or
negligently. In recent times, strict liability primarily because of the possibilities created by
insurance.

Intentional conduct is meant a party’s advertence to his conduct and its consequences, combined
with the desire for those consequences. Intentional requires proof, and because it is difficult to
prove subjective intention, constructive intention is used. The law looks at the effect produced to
determine whether the defendant’s act was so calculated to produce such effect that an intention
to do so should be imputed to him. In the words of Street on Torts if in the circumstances he had
knowledge that certain consequences will substantially result for his act then the defendant had
the desire (intends) for those consequences.

NOTE: Intent is not the same as recklessness or negligence. Thus intention can only be proved
where the person doing the act knows of the substantial certainty of the result; where mere
foreseeability is proved, it might be negligence or recklessness. In Wilkinson v Downton,12
Justice Wright applied the concept thus: one question is whether the defendant’s act was so
plainly calculated to produce some effect of the kind which was produced, that an intention to
produce it ought to be imputed to the defendant, having regard to the effect was produced on a
person to be in ordinary state of health? Negligence on the other hand is a total or partial
inadvertence of the defendant to his conduct and/or the consequence of it, e.g. A bank security
who falls asleep and a thief stealing money will be liable in negligence.

TASK OR AIM OF THE LAW OF TORTS

In his article, Professor Glanville Williams,13 asserts the following as the aims of the Law of
Tort.

 Appeasement;
 Justice;
 Deterrence; and
 Compensation

12
[1897] 2 QB 57
13
Professor Glanville Williams “Aims of the Law of Tort” 1951 Legal Problems
6|Page
What is prevalent aim of the law of Tort today appears to be compensation. In their book, 14
Hepple and Matthews assert that “the primary function of the law of torts is to define the
circumstances in which a person whose interests are harmed by another may seek
compensation”

The nineteenth century shifted the centre of gravity of torts, from the intentional torts to those
based on negligence. Industrial and traffic accidents which followed in the trail of
industralisation in that century have largely been caused negligently rather than intentionally.
These are predictable which as a result people take liability insurance policies to cover them.
This predictability has led to the on-going traditional reappraisal of the task of the law of torts.
Those who criticizes the present approach of the law od torts to the compensation of personal
injuries argue that private liability insurance and other schemes of loss distribution have virtually
destroyed the basis of liability in tort, that is , fault.

For deterrence, the objective usually cited to justify fault as a basis of liability, no longer works
in a good number of cases because the defendant’s do not satisfy the judgments from their own
pockets- their insurers do this for them – this leads to arguments for strict liability. It has been
argued that for the foreseeable future, we are justified in assuming that the law of Torts will
remain central to our system of compensation for personal injuries and damage to property; its
study therefore remains a useful and productive enterprise.15

INTENTIONAL TORTS

There are lot of different protected interest in the law of Torts, there are different types of
sanctioned conduct (conduct of varying degrees of moral reprehensibility) which have different
remedies.

Trespass to the Person

In the law of Torts, there is for most part, a hierarchy of protected interest. In his book, 16 Peter
Cane states the following points in relation to intentional torts:

 Intentional torts protect some of the most highly valued interest;

 Example, because our right to bodily integrity is so highly ranked, the tort of battery is
actionable per se;
 Bodily integrity is worth more than money – different interest have different values and
bodily integrity is at the top of the list;
 Physical integrity and autonomy (not to be imprisoned) requires fundamental value
because there are echoes of the protection of these rights in the Constitution , prohibitions
against denying people their liberty and on torture but not on anything relation to money;
 Intentional torts relate to bodily integrity, protection of our most cherished values;
 The very fact that these values are protected explains some of the of the remedial oddities
that are associated with intentional torts;

14
Tort Law: Cases and Materials (7th edn Hart Publishing, London) 2015
15
Kumado, Kofi Introduction to the Law of Torts in Ghana (Black Mask )
16
Cane, Peter, Anatomy of Tort Law (Hart Publishing, Oxford, 1997)
7|Page
  Intentional torts or Trespassory torts are actionable per se meaning there doesn’t need to
be infliction of actual harm, for example, being falsely imprisoned or kissed unwantedly.
In Lumba v Secretary of State for Home Department,17 the Supreme Court held thus:

Trespassory torts (such as false imprisonment) are actionable per se regardless of whether
the victim suffers any harm. An action lies even if the victim does not know that he was
imprisoned [because, as Lord Griffiths once pointed out] … “the law attaches supreme
importance to the liberty of the individual and if he suffers a wrongful interference with
that liberty it should remain actionable even without proof of special damage”

The relevant intentional torts to the person (as they can be conveniently labelled) are:
 Battery;
 Assault, the gist of the tort of assault is an act which would cause a reasonable person to
apprehend an imminent batter;
 Unlawful arrest; and
 False imprisonment

BATTERY

It is the intentional application of force to another by direct means or through unwelcomed

physical contact, irrespective of whether intent to harm or hostility is involved.

The tort of Battery is committed by intentional application of force to another by direct means
through an unwelcomed physical contact, irrespective of whether intent to harm or hostility is
involved. Thus the tort of battery protects the individual from unpermitted physical contact. 18

Elements of the tort of Battery

1. There must be direct act

Defendant’s conduct must have caused the basis of the plaintiff’s complaint. Hence in Scot v
Sheperd,19 Sheperd tossed a squib into a crowded market in the Market House in the town of
Milborne Port in Somerset, where it landed on the table of a gingerbread merchant named Yates.
Willis, a bystander, grabbed the squib and threw it across the market to protect himself and the
gingerbread. Unfortunately, the squib struck the plaintiff in the face, injuring him. Plaintiff sued
the defendant for trespass and assault. According to De Grey, CJ: the question here is whether
the injury received by the plaintiff arises from the force of the original act of the defendant, or
from a new force by a third person. The real question does not turn on the lawfulness or
unlawfulness of the original act … but the true question is whether the injury is the direct and
immediate act of the defendant. The new direction and new force flows out of the first force, and
are not a new trespass. He was in the majority and found for the plaintiff.

Blackburn J (dissenting) said: where the injury is immediate, an action of trespass will lie; where
it is only consequential, it must be an action on the Case. He however, was not ready to accept
that the injury was caused by a direct continuation of the first act. He stated “if any person gives
17
[2011] UKSC 12
18
Kumado, Kofi Introduction to the Law of Tort in Ghana
19
[1773] 96 ER 525
8|Page
that new stone a new motion and does further mischief with it, trespass will not lie for that
against the original thrower; I think the true question should have been, would the result have
occurred had it not been for the intervention of another independent agency?

In Leame v Bray,20 the defendant drove his horse-drawn carriage into the plaintiff’s carriage. The
plaintiff’s horse panicked and jumped_____________. Lord Ellenborough stated thus: if the
injury be committed by the immediate act complained of the action must be trespass; if the injury
be merely consequential upon that act, an action upon the case is the proper remedy.

Similarly, in the Ghanaian case of Miller v Attorney-General,21 the plaintiff, a 16 year old boy
and his friend went to Cantonments residence to sell a Kente cloth he had received from his
father. After visiting three bungalows with no purchaser, they arrived at the bungalow of the
defendant, a police officer. After informing the defendant of their intention to sell the cloth, the
defendant refused to buy it at the stated price which he found expensive as the cloth was old. He
also questioned about the ownership of the cloth where he was told that it belonged to the
plaintiff’s father. The plaintiff then walked with his friend towards the Cantonment roundabout.
After a distance walk, they heard someone calling them that Lamptey wanted to buy the cloth but
they ignored the message and treated it with contempt. As they continued their journey they saw
a car coming towards them, and heard a shout. The car stopped near them where the driver fired
a shot from a pistol. Frightened, the plaintiff and his friend started running. They went opposite
sides and as the plaintiff’s friend was still running he heard a second shot. He fell in a gutter and
when he was picked from the mud, he saw that the plaintiff had been shot in the head and was
lying down. Sadiku, the plaintiff’s friend later discovered that it was the police officer who had
fired the shot.

For the defendant, he admitted shooting and injuring the plaintiff, but he said that he did so as a
police officer and in the course of arresting the plaintiff whom he suspected of having committed
a crime of stealing.

It was held by Abban J (as he then was) that it is common place that in order to found an action
in assault and battery there must have been a direct and intentional application of physical force
to the person of the plaintiff by the defendant such as a blow inflicted with the hand or with a
weapon or some other object.

In Letang v Cooper,22 he English Court of Appeal decided that negligently caused personal injury
cannot be recovered under the trespass to the person, but the tort of negligence must tried
instead. Lord Denning expressed himself thus: if one man intentionally applies force directly to
another, the plaintiff has a cause of action in assault and battery.

In Covell v Laming,23 the owner of a ship, being himself on board, and standing at the helm,
unintentionally run his ship against another ship. The facts are that the plaintiff sued the
defendant for trespass for running defendant’s ship against plaintiff’s, when the trespass
happened, the defendant was himself on board his ship and stood at the helm; but there was
evidence to show that he wished to steer clear of the plaintiff, and that if he was to blame for

20
(1803)
21
[1975] 2 GLR 31
22
[1964] EWCA Civ.5
23
170 ER 1034
9|Page
what had happened, it was only through ignorance and unskillfulness. Lord Ellenborough stated
thus: whether the injury complained of arises directly or or

2. There must be a voluntary act

Defendant must have been in control of his actions. Thus in Gibbons v Pepper,24 the defendant
was riding his horse through town. The horse became frightened, and the defendant lost control
of the horse. The defendant warned people nearby to look out for the horse. Despite the
defendant’s warnings, the plaintiff did not move out of the way of the horse and was then injured
by the horse. Plaintiff sued the defendant for trespass, assault and battery. The court held that the
defendant was liable for battery as he was the one riding the horse and no one whipped the horse.

3. There must be physical contact with the person or plaintiff

A plaintiff who sues a defendant in the tort of battery must prove that there was physical contact
with his person or at least through an instrument. In R v Cotesworth,25 spitting in a person’s face
was held to be battery and therefore the defendant was found liable. In Fagan v Metropolitan
Police Commissioner,26 Fagan was driving when a police officer approached him and ordered
him to move the automobile. In doing so, Fagan turned his car around and rolled it onto the
policeman’s foot. When the police ordered him to move the car off on foot, Fagan yelled at the
police officer, refused to do so, and then switched the engine off. It was held that the conduct of
Fagan was a battery. In Cole v Turner,27 Holt CJ, held as follows:

 Firstly, the least or lightest angry touch constitutes battery;

 Second, a gentle touch made in close quarters/passage with no ill intention is not battery;
and
 Third, a forceful or reckless touch, in close quarters is a battery.

In Collins v Wilson,28 a police officer wished to question a woman in relation to her alleged
activity as a prostitute. The woman decided to walk away, but the police officer was intent on
stopping her and in order to do so, grabbed her arm in order to prevent her from walking away.
Under the Street Offences Act 1959, the police officer had no power to detain the woman. The
woman struggled with the police officer and scratched him. She was charged with assaulting a
police officer in the course of his duty. It was held that the police officer was acting outside the
scope of his powers as he had no powers as he had no power to arrest the woman in that situation
and therefore, was acting outside the scope of his duties as a police officer. It was held further
that the grabbing on the part of the police officer, without the power to make an arrest, amounted
to an unlawful assault (a battery).

In Dodwell v Burford,29 the defendant struck a horse which the plaintiff was riding and the
plaintiff was thrown and injured. It was held that what the defendant did constituted a battery.
Compare with Gibbons v Pepper,30 where the defendant was riding his horse through town. The
24
95 ER 922
25
[1891] 1 QB 86
26
[1968] 3 WLR 1120
27
[1704] 6 Mod Rep 149
28
[1984] 1 WLR 1172
29
[1670] 1 Mod Rep 29
30
(1695) 91 ER 922
10 | P a g e
horse became frightened, and Pepper lost control of the horse. Pepper warned people nearby to
look out for the horse. Despite Pepper’s warnings, Gibbons did not move out of the way of the
horse and was then injured by the horse. Gibbons brought suit against Pepper for trespass,
assault, and battery. It was held the injury by the Gibbons was not a direct result of the
defendant’s action????

4. There must be a positive act not omission to act

The maxim is “not doing is not trespass” In Innes v Wylie,31 A police officer was ordered to
prevent the plaintiff from entering a hotel room, under bona fide belief the plaintiff had been
lawfully ejected. The police officer blocked the path of the plaintiff, then shoved him when he
attempted to force his way through. The plaintiff then sued the officer for assault under the tort
of trespass to the person. It was held that by intentionally pushing the plaintiff (in a “positive” act
of battery), the officer was liable for assault; the officer had no defence of omission available.

Note: That assault can be committed by intentional or reckless action, but not by omission alone.

5. The act must be intentional or negligent act

6. The state of mind of the defendant

7. Lack of consent

The plaintiff must prove that he did not consent to the contact; consent can arise in three ways:

i) Express consent
It is not a battery if the defendant proves that the plaintiff expressly submitted to the contact.
This makes many everyday activities not battery; for example, haircut, a surgical
operation/procedure, or passionate embrace since consent operates as a defence. In Christopher v
Bare,32 the defendant submitted in pleadings that plaintiff was assaulted with his consent; it was
held that assault must be an act against the will of a party assaulted; therefore it cannot be said
that a party has been assaulted with his own permission. In Nash v Sheen,33 the plaintiff went to
the defendant hair dresser and requested for a perm. Instead of a perm, the defendant gave the
plaintiff an unwanted tone rinse which dyed the plaintiff’s hair and gave the hair an unpleasant
color and caused him a painful rash all over his body. It was held that the act amounted to battery
because the consent was for a permanent wave.

ii) Presumption of consent

In a living community, there is a presumption in general to all non-hostile contacts. In Cole v

Turner, Holt CJ said: if two or more meet in a narrow passage and without any violence or
design of harm, one touches the other gently, no battery is intended. But if one in a desire to gain
advantage shoves another aside in an inordinate and violent manner, this trespass.

31
(1844) 1 Car & Kir 257
32
Tuesday February, 1848
33
(1953) CLY 3726
11 | P a g e
In R v Wilson,34 the Appellant branded his initials on his wife’s buttocks with a hot knife. She
had asked him to do so. Her skin became infected and she sought medical treatment from her
doctor. The doctor reported the matter to the police and the husband was charged. It was held
that the wife’s consent was valid. The branding was more akin with tattooing and cosmetic
enhancement rather infliction of pain for sexual gratification. The court further held that
consensual activity between husband and wife in privacy of the matrimonial home was not a
matter for the courts.

iii) Privileged consent

The following contacts are permitted under law. Thus in Wiffin v Kincard, it was held that there
was no assault when a constable used his stick to attract the attention of someone. In Coward v
Baddeley,35 in the course of a fire incident, the plaintiff lay his hand on the defendant fire officer
to attract his attention to another part of the building where the fire was ragging. The court held
that the law does not concern itself with trivial acts; De minimis non curat lex

Martin B said: touching a person so as merely to call his attention, … is no battery within the
definition given by Hawkins.

Privileged contact contacts can be determined by looking at the nature of the act and intention
with which the act was done.

ASSAULT

An intentional conduct which puts a person in reasonable fear or apprehension of imminent

danger. To constitute an assault there must be an act constituting a threat to do personal
violence to the party complaining coupled with a present ability to carry out that threat. In
Read v Cooker,36 the plaintiff had visited the defendant’s shop to resolve a dispute. He was asked
to leave, but he refused. The defendant along with others surround the plaintiff, rolled up their
sleeves, and threatened to break his neck if he refused to leave. The plaintiff left and sued for
assault.

The issue before the court was whether or not the threat to break the plaintiff’s neck if he refused
to leave constituted assault.

The court held that the threat constituted an assault. The court held per Jarvis CJ that: “ if
anything short of actual striking will in law constitute an assault, the facts here clearly showed
that the defendant was guilty of an assault. There was a threat of violence exhibiting an intention
to assault, and a present ability to carry the threat into execution”.

In Miller v AG,37 the court decided that to point a loaded revolver at another person in such a
hostile manner and within a shooting distance as in the present case, and which conduct put the
other person in reasonable fear of apprehension of an immediate battery constituted an assault.

It was held that ______________

34
[1996] Crim. LR 573 242
35
(1859) 157 ER 927
36
(1853) 13 Common Bench Report 850
37
[1975]
12 | P a g e
Elements of the tort of Assault

i. Mental state of the defendant

To constitute an assault, the plaintiff ought to prove that the defendant had the sufficient mental
state to commit the tort. In Tuberville v Savage,38 a man placed his hand on his sword and told
another man, “if it were assizes time, I would not take such language”. The justices of assizes
were in town. It was held that an assault requires both i) the intention and ii) the act of assault.
Even an act of, for example, striking a man, without an intention to assault, does not constitute
an assault. Accordingly, the court held that the facts did not give rise as the man merely
stipulated that he would have the intention to assault if it were not assizes time. It was, indeed,
assizes-time and the man’s declaration expressly stipulated that he would and did not intend to
commit an assault. Thus, there could have been no assault as there were no intention no an act of
assault, nor imminent threat thereof.

Note: Tuberville v Savage,39 is also authority for the principle of law that, if gestures are
accompanied by words that negate the apparent threat in the gestures, then there will be no
assault. In other words, words accompanying an act can negate an assault.

Similarly, in Bruce v Dyer,40 Plaintiff and defendant are driving; a road rage ensued. Plaintiff
parks his car and blocks the road for the defendant and the plaintiff emerges from his car shaking
his fists violently, a fight ensues and the court held that usually when there is no intention to use
violence there can be no assault. That when there is no power to use violence to the knowledge
of the plaintiff, there can be no assault. There need not be in fact any actual intention or power to
use violence, for it is enough if the plaintiff on reasonable grounds believes that he is in fact in
danger of violence. So if, a person shakes his fist at another, the person so assaulted may strike
back, if on reasonable grounds he believes that he is in danger.

Note that where someone – like say, the police – prevent somebody from carrying out a threat,
there is no assault. Thus in Thomas v National Union of Mineworkers (South Wales Area), 41the
claimant were some miners who were working when the rest of the Union were on strike, the
ones coming to work saw the threats of those striking, why would you reasonably apprehend in
these circumstances? As the law stands there is a need to be a reasonable apprehension. Scot, J
held thus:

The tort of assault is not, in my view, committed, unless the capacity in question is
present at the time the overt act is committed. Since the working miners are in vehicles
and the pickets are held back from the vehicles, I do not understand how even the most
violent of threats or gestures could be said to constitute an assault.

NB: Mere words per se no matter how menacing do not constitute an assault. However, words
that create a reasonable apprehension of imminent physical contact will constitute an assault. In
R v Wilson,42 the defendant nearly hit a pedestrian, the victim, with their vehicle and an

38
[1669] EWHC KB J25
39
[1669] EWHC KB J25
40
1966 CanL II 191(ON SC)
41
[1985] 2 All ER 1
42
[1994] AC 242
13 | P a g e
altercation between the two subsequently ensued. The argument became heated and the
defendant subsequently punched the victim. The issue before the court was whether force can be
indirectly, as well as directly applied to satisfy the meaning of inflict for a s.20 charge of
grievous bodily harm , and whether an initial assault first be established.

ii. The effect of the defendant action on the plaintiff

The plaintiff show that the conduct of the defendant created in him threat of an imminent battery.
Thus in R (Regina) v St George,43the defendant got into an argument with the plaintiff. During
the course of this argument, the defendant took out a gun and pointed it at the plaintiff. The gun
was, in fact not loaded. He was in any way prevented from taking further action by a third party.
The defendant was prosecuted for assault and, and he was found guilty. The judge was of the
view that, threatening someone with a gun, regardless of whether the gun was loaded, would
amount to a threat so long as the plaintiff thought that the gun was in fact loaded.

NOTE: the test applied in this case is subjective, but there must be at least a subjective
possibility the threat against the plaintiff can be carried out.

In contrast, in Blake v Bernard,44 a man put his gun at the head of another and said, ‘be quiet or I
blow your brain out’. It was held that the gun had to be loaded before assault could be
established.

iii. Capability to carry out the threat

The plaintiff must also show that the defendant was capable to carry out the threat. Thus in
Stephen v Myers,45 in a church meeting, the defendant advanced on the chairman stating that,
[‘he would] rather pull the chairman out of the chair, than be turned out of the room’. He made
a violent gesture at the plaintiff, chairperson by waiving a clenched fist, but was prevented from
reaching by the intervention of third parties. The Court held that the defendant was liable for
assault as he was capable of carrying out his threat if he was not stopped by third parties.

However, in Thomas v National Union of Mineworkers (South Wales Area), 46the Court held that
the threat by picketing miners is not an assault. The actions of the defendant could not constitute
an assault as the crowd lacked the capacity to immediately carry out its threats because the picket
was under control and observation of the police.

iv. Bodily movement

In Innes v Wylie,47 the principle established was that obstruction is not an assault, if not
intimidating. In this case, a policeman stood at the door of a building and his body blocked the
plaintiff from entering the room. The passive state was not threatening and could not harm the
plaintiff in any way. The court held that the defendant was not liable for assault. Therefore if the
defendant is active, and threatening, the act can be counted as an assault.

43
173 ER 921
44
173 ER 985
45
(1830) 4 C & P 349
46
[1985] 2 All ER 1
47
(1844) 1 Car & Kir 257
14 | P a g e
In Read v Coker,48 the plaintiff owed rent money to the defendant. When the plaintiff was asked
to leave, he refused. The defendant therefore asked three employees to see the plaintiff off the
premises. The employees then surrounded the plaintiff, rolled up their sleeves and said to him ‘if
he didn’t leave, they would break his neck. It was held that this was an assault.

v. Mere words alone (Can mere words alone constitute an assault?)

The general principle is that mere words alone cannot constitute an assault. In R v Ireland,49 a
stalker breathed heavily down the telephone, yet did not speak. The House of Lords that silence
is a threat if the defendant intended to cause fear, and it is assault if the plaintiff fears it would be
carried out in the very near future, i.e. a couple of minutes.

Words which instil a reasonable fear of unlawful and immediate physical violence do amount to
assault. Thus in R v Wilson,50 the defendant shouted get out your knives in a physical fight
developed. Lord Goddard stated that the words would by themselves amount to an assault. Tone
of voice, facial expression, gesticulation should be considered as well. The case was actually
decided on the physical aspects which demonstrated a battery was present and thus the comments
relating to words were merely obiter dicta.

In R v Meade & Belt,51 where the defendants surrounded the plaintiff’s house singing threatening
and menacing songs; the Court held that no assault was committed as “no words or singing are
equivalent to an assault”.

UNLAWFUL ARREST

Laws dealing with unlawful arrest in Ghana includes the common law and statute especially the
Criminal and Other Offences Procedure Act, 1960;52 as well as the constitution of Ghana.53

Common law rules

The Common law rules on unlawful arrest starts with the case of Christie v Leachinsky,54 where
the Appellants who were Liverpool police officers arrested the Respondent in his warehouse in
Liverpool, without a warrant. At the time, they suspected and had reasonable grounds for
suspecting that he had stolen or feloniously received, at Leicester, a bale of cloth then in the
warehouse, but they did not give this as a ground of arrest. Instead they said they were arresting
him on a charge of “unlawful possession” under the Liverpool Corporation Act, 1921, though in
the circumstances, the Act gave them no power of arrest without a warrant. The Respondent was
taken to the police station and brought before a Magistrate on the unlawful possession charge. In
an action for the imprisonment, the Appellants sought to justify the arrest and detention on the
common law ground. In the judgment of the court, Viscount Simmonds stated thus:

If a policeman arrests without a warrant upon reasonable suspicion of felony, or of other

crime of a sort which does not require a warrant, he must in ordinary circumstances

48
(1853) 13 Common Pleas Reports 850
49
[1998] AC 147
50

51
(1823) 1 Lew. C.C. 184
52
Criminal & Other Offences (Procedure) Act, 1960 (Act 30)
53
Constitution of the Republic of Ghana, 1992; articles 14 and 21
54
[1947] AC 573
15 | P a g e
 inform the person arrested of the true ground of arrest. He is not entitled to keep the true
ground to himself or to give a reason which is not true. In other words, a citizen is
entitled to know on what charge or on suspicion of what crime he is seized.

It has been said that a person arrested without a warrant must be informed of the ground for the
arrest;55 and that the cause of the arrest given must be the real cause and not some false reason
given to gain time. In Asante v The Republic,56 it was held that failure to inform the person being
arrested of the cause of his arrest made the arrest unlawful and therefore entitled that person to
arrest, using whatever force was necessary to do so.

FALSE IMPRISONMENT

The tort of false imprisonment protects the individual rights guaranteed under the Constitution of
the Republic of Ghana, 1992. The Constitution protects a person’s freedom from physical
restraint. According to the constitution, all persons shall have the right to free movement which
means the right to move freely in Ghana, the right to leave and to enter Ghana and immunity
from expulsion from Ghana.57 The tort seeks to protect a person’s freedom from physical
restraint (that is, it protects one’s freedom of movement. This right is also protected by articles
14, 15 and 21(1) of the Constitution of the Republic of Ghana, 1992. Under the constitution, any
person who is unlawfully arrested, restricted or detained by any person shall be entitled to
compensation from that other person.58

According to Street on Torts, the tort of false imprisonment is an act of the defendant which
directly and intentionally (or possibly negligently) caused the confinement of the plaintiff within
an area delimited by the defendant. From the Sayers case false imprisonment cannot be
committed negligently. The act must be direct, intentionally caused by the defendant and the
confinement of the plaintiff to an area delimited by the defendant. False imprisonment is
actionable per se

The tort is founded on imprisonment and absence of justification. The assumption being that the
defendant departed from due process. In Appiah v Mensah,59 where the plaintiff a timber
contractor agreed to sell his tractor to the first defendant who had been awarded a government
contract. An amount of ȼ75,000 was paid to the plaintiff by the Bank for Housing and
Construction out of the selling price ȼ100,000. When the plaintiff failed to deliver the tractor as
agreed, the first defendant reported the matter to the Regional Commissioner of the Western
Region in turn advised the first defendant to lodge a complaint with the Special Action Unit.
After the complaint had been lodged, the head of the Special Action Unit arranged a meeting
between the parties, and the plaintiff promised to deliver the tractor to the first defendant. When
later the plaintiff failed to deliver the tractor as promised, the defendants, all soldiers were sent to
arrest the plaintiff. They were accompanied by the first defendant. On their arrival at the house of
the plaintiff, the first defendant pointed the plaintiff and although plaintiff was sick and had been
ordered to rest by his doctor, the soldiers took him away that very night in a car belonging to the
first defendant and driven by his son. The plaintiff was kept in a cell until the following morning.

55
See Amissah, A.N.E. Criminal Procedure in Ghana
56
[1972] 2 GLR 177
57
See Constitution of the Republic of Ghana, 1992, article 21(1)
58
See Constitution of the Republic of Ghana, 1992; article 14
59
[1978] 1 GLR 342
16 | P a g e
The plaintiff subsequently sued the defendants for causing him to be unlawfully arrested and
falsely imprisoned.

Sarkodie J, defined false imprisonment as the complete deprivation of liberty for any time,
however, short, so long as it is without lawful excuse.

False imprisonment is founded on two (2) main ingredients:

 Imprisonment; and
 Absence of justification

Imprisonment is said to be the restraint of a man’s liberty, whether it be in the open field or in
het stocks or cage, or in the gaol. And in all these places, the party so restrained is said to be a
prisoner, so long as he hath not his liberty freely to go at all times to all places whither he will
without bail or main prize. In Warner v Riddiford,60 the defendant, a beer-house operator,
employed the plaintiff to carry on his business at weekly wages determinable, under the
agreement on a month’s notice. The defendant gave the plaintiff a week’s notice, checked the
accounts and asked the plaintiff to make up the difference. The plaintiff refused on the ground
that he had not been given the stipulated one month’s notice. The defendant brought in two
police officers. One of the officers when the plaintiff decided to go upstairs refused to let him go.
Later he was allowed to go unaccompanied. When he persisted in refusing to make the
difference, he was taken into custody and charged with embezzlement. He was discharged; the
plaintiff then brought an action for false imprisonment. In directing the jury, the judge told them
to consider three questions:

i. Firstly, whether there was any imprisonment?

ii. By whom?
iii. Any legal justification for it?

On the first point, he told them that “to constitute an imprisonment, it was not necessary that the
person should be locked up within four walls, but that if he was restrained in his fdom of action
by another, that was an imprisonment ..” this direction on appeal was held to be a correct
statement of the law.

He restrain in order to amount to imprisonment must be total. Thus a person must be confined in
all directions. Where it is partial, thus there is a reasonable means of escape, then it is not false
imprisonment.61

Elements in the tort of False Imprisonment

1. The restraint must be without justification

The plaintiff must show that he was imprisoned without justification by the defendant. In
Warner v Riddiford,62 it was said that to constitute imprisonment it was not necessary that the
person should be locked up within four (4) walls but that he was restrained in his freedom of
action by another.
60
(1858) 140 ER 1052
61
See Bird v Jones [1845] 7 QB 742
62
(1858) 140 ER 1052
17 | P a g e
 2. The restraint must be total

To constitute false imprisonment, the area of confinement should be one that has been fixed by
the defendant and there is no reasonable way of escape. In Bird v Jones,63the plaintiff was
prevented from crossing a particular bridge. He was however, allowed to go through another
route. He thus sued for false imprisonment. In dismissing the claim, Lord Coleridge stated:

… I am of opinion that there was no false imprisonment. To call it so appears to me to

confound partial obstruction and disturbance with total obstruction and disturbance.

The plaintiff must show that his imprisonment was total, that is he was confined in all directions;
that there was no reasonable means of escape or that the plaintiff as a reasonable person, did not
know and was not expected to know of any reasonable means of escape. The principle is that
when there is a reasonable way out, it must be used and the plaintiff cannot, in those
circumstances, claim that his liberty has been restrained.

In Wright v Wilson,64it was held that no false imprisonment arose when the plaintiff could have
escaped from his confinement, although it meant he would have trespassed on another’s land in
order to regain his liberty.

The length of the restrain does not matter, in Bird v Jones, Lord Denman, CJ sated in relation to
the length of restraint as follows:

Imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however
short a time.

Merely failing to facilitate the departure of a person from one’s premises does not does not
amount to false imprisonment. Thus in Heard v Weardale Steel, Coal and Coke Co, 65 a miner
went down into the defendant’s coal mine on the agreement that he would work for a fixed time
and at the expiration of that time, he would be conveyed to the surface by means of machinery
supplied by the employers. He stopped work earlier in breach of his contract and demanded to be
conveyed to the surface at once. His employers refused and he remained in the mine until the
agreed closing time. In an action for false imprisonment, it was held that he had no cause of
action because the miner had no right to use machinery whenever he wants. Therefore the period
he remained in the mine till the end of his regular shift; he had not in law been imprisoned

Viscount Haldane LC noted thus: my Lords, by the laws of this country no man can be
restrained of his liberty without authority in law. That is a proposition the maintenance of
which is of great importance; but at the same time it is a proposition which must be read in
relation to other propositions which are equally important; if a man choses to go into a
dangerous place at the bottom of quarry or the bottom of a mine; from which by the nature
of physical circumstances he cannot escape, it does not follow from the proposition I have
enunciated about liberty that he can compel the owner to bring him up out of it; the owner
may or may not be under a duty arising from the circumstances on broad grounds the neglect
of which may possibly involve him in a criminal charge or a civil liability. It is unnecessary

63
[1845] 7 QB 742
64
54 F. 2d 616 (3rd Cir. 1946)
65
[1915] AC 67
18 | P a g e
 to discuss the conditions and circumstances which might bring about such a result, because
they have in the view I take nothing to do with false imprisonment.

Similarly, in Robinson v Balmain New Ferry Company Ltd, 66 the defendant/Respondent carried
on and operated the business of a harbor steam ferry between Sydney and Balmain. They had a
wharf on the Sydney side of the ferry and you had to enter by a turnstile and go out by another if
you want. The Appellant entered the wharf intending to cross to Balmain by one of the steamers.
Discovering that the next Steamer would come in twenty minutes time, he decided to leave but
refused to pay the toll (of one penny) at the exit turnstile. After some struggle, he succeeded in
leaving; and brought an action for false imprisonment, whereupon judgment was given against
the company. The company successfully appealed against the decision of the court of first
instance. On further appeal to the Privy Council, it was held that the toll imposed was
reasonable; so there was no liability for false imprisonment. What can be gleaned from this case
is that a passenger on however, not an authority for the proposition that one can detain people to
enforce the performance of a contract. In Sunbolf v Alford, 67 the defendant innkeeper detained
the plaintiff-customer for not paying his bill. It was held the conduct of the defendant amounted
to false imprisonment.

It should be noted that in the instance of lawful detention, a change in the quality of condition
would not amount to false imprisonment. Thus if prisoners are housed in unsanitary cells, it
would not amount to false imprisonment. Thus in Hague v Deputy Governor of Pakhurst
Prison,68 the defendant ordered that the claimant be transferred to solitary and unsanitary cell
away from other prisoners. The plaintiff subsequently sued for false imprisonment. The court
held that the fact that the claimant was already lawfully in detention meant that the prison
authority had the right to move him to any prison they want. Thus, the action for false
imprisonment failed.

3. The state of mind of the defendant

To prove false imprisonment, the defendant must intend to do the act which resulted in false
imprisonment. However, if a person is imprisoned even with a good intention, there would still
be liability for false imprisonment. Thus in R v Governor of Brockhill Prison; Ex parte Evans
(No. 2)69 the time of imprisonment of a convict was wrongfully calculated. Thus, the convict
spent extra time in prison, it was held that this resulted in false imprisonment.

In W Elphinstone v Lee Leng San,70 a police officer acting under mistake ordered the restraint of
the plaintiff, an accused person who was attempting to leave a courtroom after hearing of a
charge against him, the judge regarded the case as one of negligent false imprisonment for which
in his

4. The restraint must be a direct consequence of the Defendant’s act

66
[1910] AC 295
67
(1883) 3 M & W. 248
68
[1991] 3 All ER 733
69
[2002] 2 AC 19
70
(1938) 7 M.L.J 135
19 | P a g e
The plaintiff must show that he was imprisoned by the defendant personally or caused a law
enforcement agent to effect the imprisonment. In Narwu v Armah,71 it was held that where a
complainant gives information to a police officer and the officer acts according to his own
judgment and makes an arrest, the complainant incurs no liability for false imprisonment. But
where the complainant does not merely give information but directs the officer to effect the
arrest, the officer in that case is considered as the servant of the complainant and the complainant
and the complainant will be liable for false imprisonment.

Similarly, in Harnett v Bond,72 the lived in an asylum run by the second defendant. The plaintiff
was given a month’s leave but the second defendant was given the discretion to call the plaintiff
back if he felt that the plaintiff could not look after himself during that one month. The
defendants brought the plaintiff back to the asylum. For nine years thereafter the plaintiff was
sent from one institution to another. He was finally proven sane and released. The jury was of the
opinion that the plaintiff was sane nine years previously at the time of committal to the
institution. The Court of Appeal found the defendant to be liable for false imprisonment.

However, where the information given by the complainant on which the plaintiff is arrested is
false to the complainant’s knowledge, false imprisonment will lie. In Musa v Limo Wulana.73

5. Restraint was an intentional act of the defendant

Plaintiff must show that his imprisonment was an intentional act of the defendant; that is the
defendant, as a defendant, as a reasonable man. An arrest often involves or results in restraint on
a person. An unlawful arrest therefore constitutes false imprisonment. For example if A
instigates the police to arrest B, if the arrest becomes unlawful, A is liable for false imprisonment
because the arrest is the direct act of A. however, if A informs the police about the state of affairs
and the police conducts its own investigations which then results in the arrest of B, then there is
no false imprisonment, even if the arrest is not effected in a lawful way, because the arrest does
not results from the direct act of A. It is often not easy to distinguish between informing and
directing. Thus in Davidson v Chief Constable,74 Lord Bingham, MR stated as follows:

Whether what (the informer) did went beyond laying information before police officers for
them to take such action as they saw fit and amounted to some direction, or procuring, or
direct request, or direct encouragement that they should act by way of arresting …

In Onogen v Leventis,75the plaintiff was a store-keeper of the defendant company in charge of the
company’s drinkables and provisions store at Market Circle in Takoradi. It appeared that the
company lost 70 cases of Heineken beer and the general agent of the company informed the
police. The plaintiff was arrested and detained for 26 hours before being granted bail.
Subsequently, he was prosecuted and was acquitted. He brought an action for false
imprisonment. Adumua-Bossman J (as he then was) quoted Salmond on Torts, (10th ed.) as
follows:

71
[1972] 2 GLR 331, CA
72
[1925] All ER 110
73
[1975] 2 GLR 290
74
[1994] 2 All ER 597
75
[1959] GLR 105
20 | P a g e
 An action for false imprisonment will lie against any person who authorizes or directs the
unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law … He
makes that ministerial officer his agent and is responsible for any arrest or detention so
procured or authorized, as if it were his own act. It is necessary, however, even in such a case
to prove actual direction or authorization, such as is sufficient to make the ministerial officer
the agent of the defendant. Mere information given an officer, on which he acts at his own
discretion, is no ground of liability, so no false imprisonment.

In contrast, in Austin v Dowling,76 the plaintiff was a lodger in the defendant’s premises. It
appeared he owed some money, was sued and paid. But he still owed a small sum of money. One
day, when he returned to his lodgings, he discovered that the drawers in his bedroom had been
emptied and his private cupboards and their contents removed. He went to report to Clifton
Police Station and was accompanied back at his request, by a police officer. At the house the
plaintiff demanded from the defendant’s wife his property and was refused. The plaintiff went
upstairs, broke the door of a bedroom in the defendant’s house occupied by another lodger with
his shoulders and screw-driver. When he returned downstairs, the defendant’s wife handed the
plaintiff over to the police for the felony of breaking open the door. He was taken into custody
and walked to the police station. After hearing the circumstances of the case, the inspector in
charge declined to detain the plaintiff unless the defendant signed the charge sheet. The
defendant signed the charge sheet. The plaintiff was charged with feloniously breaking and
entering bedroom in the defendant’s house. The plaintiff was detained for 17½ hours before
being brought before magistrates where he was discharged. He brought an action for false
imprisonment and malicious prosecution. He lost at first instance; but on appeal, the court said
that there was evidence of false imprisonment because, signing the charge sheet after police say:
no detention unless so signed, amounts to authorizing the police to imprison the plaintiff – it was
the doing of an act which caused the plaintiff to be kept in custody.

6. False imprisonment can take place anywhere

False imprisonment can take place anywhere – in the plaintiff’s own house, in the mine, on a
bridge or highway. Wherever, the place, the requirements are that the plaintiff must be totally
restrained in a place whose boundaries are delimited by the defendant.77

7. Imprisonment can result from words or acts or both

8. Knowledge of the restraint

Must the plaintiff be aware of the restraint to succeed in an action for false imprisonment? False
imprisonment can occur whether or not the plaintiff was aware of it at the time it occurred.
According to Lord Atkin, a person can be imprisoned while he is asleep, in the case of
drunkenness, while unconscious or while he is a lunatic.

There appears to be some confusion on this subject based on the conflicting decisions in two
cases. In Herring v Boyle,78 the plaintiff, suing by his next friend, was an infant of ten years. He
was in the defendant’s school during holidays. When the school vacated, his mother came to take
him home for a few days but the defendant refused on saying he would not let him go until some
money owed to the school had been paid. He would not let the mother see the child either. After

76
(1870) LR. 5 C.P. 534
77
[1976] 1 GLR 342
78
[1910] AC 295
21 | P a g e
persistent demand and refusal, a writ of habeas corpus was taken out. The plaintiff was then
released and taken home by his mother. There is no proof that the plaintiff knew of the earlier
denial to see his mother; neither was there proof that of any actual restraint on him. He also
appeared to have enjoyed it. It was held that there was no false imprisonment.

In contrast, Meering v Graham-White Aviation Company,79 the plaintiff was brought to his
employer’s office to answer some questions in relation to theft. Two guards were stationed
outside to prevent him from leaving the room. When the plaintiff found out, he sued for false
imprisonment. Lord Atkin held thus:

It appears to me that a person could be imprisoned without his knowledge. It is quiet

unnecessary to go on to show that in fact the man knew that he was imprisoned.

The defendants were held liable for false imprisonment. Lord Warrington and Lord Atkin took
the view that consciousness of the confinement was irrelevant to the question of false
imprisonment.

Similarly, in Murray v Ministry of Defence,80 the House of Lords held that the law attaches
supreme importance to the liberty of the individual and if he suffers a wrongful interference with
that liberty, it should remain actionable.

9. False imprisonment is actionable per se

False imprisonment, like the other, intentional torts, is actionable per se, meaning that the
plaintiff does not need to prove injury in other to succeed. In Lumba v Secretary of State for the
Home Department,81 Lord Dyson said thus:

Trespassory torts (such as false imprisonment) are actionable per se regardless of whether
the victim suffers any harm. An action lies even if the victim does not know that he was
imprisoned.

MALICIOUS PROSECUTION
THE RULE IN WILKINSON v DOWNTON

79
(1919) 122 LT. 44
80
[1988] 2 All ER 521 (HL)
81
[2011] UKSC 12
22 | P a g e